Question about Alexander v. Sandoval

[Howard Gillman]

Thanks, Eugene.  I think I understand the legal analysis, but that's a helpful summary anyway.

I was asking because my sense is that these days racial minorities mostly raise challenges based on disparate impact because it is rare that modern-day decision-makers leave evidence of intentional discrimination against racial minorities.  The most obvious example of "intentional discrimination" is (I think) affirmative action (accepting at face value the conservatives' belief that all race-conscious policy-making should be considered "discrimination").

While I understand that the Court majority said that "both whites and non-whites Title VI to challenge intentional discrimination" I was wondering about the "disparate impact" of this facially neutral rule.

Obviously, there is an echo of the "legal realism" thread in this question.  I know that law professors are inclined to react to these decisions by arguing endlessly about the coherence of the legal arguments (and I don't disagree with that practice).  But it is also not a coincidence that this conservative majority (along with Eugene) just happens to interpret both the 14th amendment and Title VI in ways that leave the doors of federal courts open to whites who challenge affirmative action (pursuing more conservative policy preferences) but close those doors to the most typical sorts of lawsuits brought by minority litigants (pursuing more liberal policy preferences).

Howard Gillman
USC Political Science